Q: Following up on that last question, would you characterize your work as "generational" in the sense of representing interests and concerns that occupied legal historians who entered the field at a particular time? How do you feel your work relates to the interests and concerns of entering and junior scholars in American legal and constitutional history or judicial biography?
A: All of us who started doing scholarship in American legal history in the 1970s have been shaped by the experience of attempting to undertake a scholarly enterprise for which there was very little institutional support in the academy, either from law schools or history departments. When we first went on the academic market, most law schools regarded doing history as either an antiquarian exercise or a "prologue" to debates on contemporary issues, and most history departments had turned to social history, quantitative analysis, and behavioralist theories of judging. Applying intellectual history to themes in constitutional law, which is what I anticipated doing, was particularly out of phase. In some respects the low reputation of legal and constitutional history worked as a stimulus for many of us: since there had been very little serious scholarship in those fields in the 1950s and 1960s, we felt there was a lot of topics on which we could make contributions, so long as we could get over the lack of institutional support.
By the late 1970s we had "succeeded" in the sense that most of the major law schools and history departments had at least one person whose primary academic interest was legal history. But a number of historians in my age cohort became fixated on what sort of methodological approaches were "appropriate" for the field, which lead to interpretive disputes that were taken as having ideological ramifications, in my judgment producing turf battles that were distracting and sometimes unpleasant. Fortunately, instead of the field becoming dysfunctionally polarized, two methodological approaches that were initially on opposite ends of the political spectrum--the deconstructive techniques associated with critical legal studies and the turn to originalism by constitutional scholars provoked by "living constitution" models of constitutional interpretation--became domesticated by 'mainstream' historians of private and public law, creating a number of relatively novel and promising ways of interpreting legal texts. Eventually people in the legal academy without historical training, and historians without legal training, found that they could learn to "unpack" historical legal documents by focusing on the ways in which the legal arguments of historical actors were constructed, revealing their "shared understandings," that is to say their starting epistemological assumptions and normative premises. Accompanying that expansion of the community of people interested in doing legal history came a realization that law was, as Robert Gordon put it in a series of influential arguments between the mid 1970s and the early 1980s, "relatively autonomous," neither "mirroring" its cultural context nor being wholly isolated from it.
Thus the older disputes about what sort of legal history one ought to do, and what the ideological consequences of a methodological choice amounted to, seem far less important: one could say that "we are all relative autonomists now." That assumption seems to me to bear a causal connection to the emergence of what I call "studies in lost history," a genre of scholarship that seeks to recover doctrinal frameworks, conceptualizations of legal issues, and starting premises driving those frameworks and conceptualizations, all of which ended up being discarded as other frameworks and conceptualizations became 'mainstream' and evolved into the 'standard' ways in which successive generations of historical actors thought about contested legal issues. John Witt's The Accidental Republic, Risa Goluboff's The Lost Promise of Civil Rights, and Tomiko Brown-Nagin's Courage To Dissent are three recent, diverse examples of 'lost history' studies. For me, the idea of 'lost history' follows closely from the understanding that because law is 'relatively autonomous,' the cultural issues that legal institutions entertain are entertained in distinctive 'legal ways,' that is, conceptualized and placed in some legal frameworks and not others. In the process some alternative, culturally possible, conceptions and frameworks are implicitly discarded, and because of the ongoing relationship in law between existing 'mainstream' judicial doctrines and legislative or executive policies and newly contested issues, end up being 'lost.'
There is a fair amount of 'lost history' in Law in American History, Volume One. I take up Amerindian tribal 'law,' a set of deeply entrenched customs and practices for engaging in social transactions and identifying or resolving disputes, and its 'obliteration' in colonial American courts as part of the process by which tribes were marginalized as European settlement of the North American continent expanded. I take up the affinities between southern agricultural households based on African slave labor and northern agricultural households based on indentured servitude, apprenticeships, and wage labor that enabled representatives from northern, middle, and southern colonies to forge common bonds, despite their different labor systems, in opposition to the governance of the American colonies by Great Britain in the decades prior to independence. I recover the process by which the Constitution of the Confederate States of America was drafted and implemented, and the inability of the participants in that process to establish a Supreme Court for the Confederacy, thereby assuring that even military decisions affecting the course of the war across the territory of the Confederate states were made at the sufferance of individual states. I discuss the importance, to the outcome of the Civil War, of the decision by a Supreme Court composed of three justices newly appointed by Lincoln in The Prize Cases, which sustained the constitutionality of Lincoln's action blockading southern ports on the ground that Confederate states were "belligerents," but at the same time declined to afford the Confederacy status as an independent sovereign nation, thereby allowing a subsequent Court to declare, after the war's end, that all the laws of the Confederacy had been nullities, not only of no effect but of no legal status whatsover.
All by way of saying that although each generation of legal historians has its own formative experiences that help shape the substantive and methodological priorities of its members, I would hope that there are some dimensions of Law in American History that might resonate with those entering the field.